It seems like hardly a day goes by without some rightwing figure claiming that President Obama should be impeached. In the past week, Texas Lt. Gov. David Dewhurst claimed that the President should be impeached for offenses ranging from failure to prevent the attack on the Benghazi consulate to his implementation of the Affordable Care Act and immigration laws, while former Alaska Gov. Sarah Palin contended that the President should forfeit his position if he allowed the country to default on its debt.
When I commented on a right wing message board that Sarah Palin might benefit from reading the Constitution, I was hit with responses describing my position as "Sather's blather," "equine fecal matter" and something about my opinions being typical for a leftist. I knew what I was getting into when I posted, so I was not terribly shocked by the response. However, since it was not that long ago that agitated liberals were calling for the impeachment and hanging of President Bush, I thought it might be productive to pull out my copies of the Constitution and the Federalist Papers and see what they had to say. I also consulted my copy of Grand Inquests, which is Chief Justice Rehnquist's book about the impeachments of Justice Samuel Chase and President Andrew Johnson.
The Constitutional Text
The Constitution provides several methods for vacating the office of the President. First, the people can decline to re-elect a president when his term ends. No matter how popular the president is, he must leave office after two terms under the 22nd Amendment. There is also a procedure for declaring the President unable to carry out his duties under the 25th Amendment. Finally, Article II, Section 4 provides that:
The President, the Vice-President and all civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason is defined by Article III, Section 3 of the Constitution to mean:
Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort.
Bribery has a pretty clear meaning. However, "other high Crimes and Misdemeanors" is problematic. In 1970, Gerald Ford defined it as "whatever a majority of the House of Representatives considers it to be at a given moment in history." While that may be accurate, it is not very helpful. (When Rep. Ford subsequently became President Ford, he probably saw the wisdom of a less expansive definition).
The Views of the Founding Fathers
According to the Constitutional Rights Foundation, the Constitutional Convention worked through several phrases before arriving at "Treason, Bribery, or other high Crimes and Misdemeanors." First they tried "treason, bribery and corruption." Then they dropped corruption and left it at treason and bribery. George Mason proposed adding "maladministration" but James Madison objected and proposed "high Crimes and Misdemeanors against the state." "Against the state" was dropped and we ended up with the final formulation. The
Constitutional Rights Foundation explained that:
Since 1386, the English parliament had used “high crimes and
misdemeanors” as one of the grounds to impeach officials of the crown.
Officials accused of “high crimes and misdemeanors” were accused of
offenses as varied as misappropriating government funds, appointing
unfit subordinates, not prosecuting cases, not spending money allocated
by Parliament, promoting themselves ahead of more deserving candidates,
threatening a grand jury, disobeying an order from Parliament, arresting
a man to keep him from running for Parliament, losing a ship by
neglecting to moor it, helping “suppress petitions to the King to call a
Parliament,” granting warrants without cause, and bribery. Some of
these charges were crimes. Others were not. The one common denominator
in all these accusations was that the official had somehow abused the
power of his office and was unfit to serve.
The Federalist Papers appear to be more interested in discussing the structural aspects of who gets to determine impeachment (Articles of Impeachment are voted upon by the House and the case is tried to the Senate) than the grounds for impeachment itself. However, in The Federalist No. 65, Alexander Hamilton described impeachment as resulting from:
those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL as they relate to injuries done to the society itself.
Both the CRF and Hamilton seem to agree that impeachment requires an abuse of the powers of office or a violation of the public trust. Under the English tradition, acts amounting to mere negligence, such as failure to moor a ship or appointing an unfit subordinate could grounds for impeachment, the rejection of the term "maladministration" suggests that something more was required. Additionally, the use of the term "high" referred to acts committed in the capacity of a public person. As a result, a President arrested for driving drunk while on vacation might be a low crime, while getting drunk at a state dinner and challenging the French foreign minister to a duel would be a high one.
The Historical Record on Impeachment
The use of impeachment in practice also provides an imperfect guide. Three presidents have had impeachment proceedings commenced and fifteen federal judges have been impeached. Among the Presidents, Andrew Johnson was impeached but not convicted for attempting to remove the Secretary of War from office in violation of a congressional enactment, Richard Nixon resigned prior to being impeached on corruption charges and Bill Clinton was impeached but not convicted for lying about a sexual affair with a White House intern. Judges have been removed from office for offenses ranging from mental instability and intoxication on the bench, waging war against the United States, perjury, accepting bribes and income tax evasion.
Supreme Court Justice Samuel Chase was impeached but acquitted on charges of arbitrary and oppressive conduct of trials after he used his charge to a Baltimore jury to rail against the current administration. According to Grand Inquests by Chief Justice Rehnquist, Chase's impeachment was an attempt by Congress and the President to remove a judge whose criticism had become a thorn in their collective side. According to Rehnquist:
(T)he Chase acquittal has come to stand for the proposition that impeachment is not a proper weapon for Congress (abetted, perhaps, by the executive as in the case of Chase) to employ in (confrontations between branches of government). No matter how angry or frustrated either of the other branches may be by the action of the Supreme Court, removal of individual members of the Court because of their judicial philosophy is not permissible. The other branches must make use of other powers granted them by the Constitution in their effort to bring the Court to book.
Rehnquist, p. 134.
Chief Justice Rehnquist similarly concluded that the failed impeachment of President Andrew Johnson stood for the proposition that impeachment could not be used to remove a president whose policies Congress found repugnant. He wrote:
Andrew Johnson was not, of course, convicted; he was acquitted. His acquittal confirmed what had already been established by the acquittal of Samuel Chase in 1805. Impeachment would not be a referendum on the public official's performance in office; instead, it would be a judicial type of inquiry in which specific charges were made by the House of Representatives, evidence was received before the Senate, and the senators would decide whether or not the charges were proven.
Rehnquist, p. 271.
Seven years later, Rehnquist's theory would be tested as he presided over the Senate trial of President William Jefferson Clinton. The House of Representatives adopted two out of four proposed articles of impeachment on a largely party line vote. The case was tried to the Senate on charges of perjury and obstruction of justice. The case was doomed when all forty-five Democrats voted not guilty, preventing the Senate from obtaining a guilty verdict. Five Republican Senators rejected both charges, while an additional five Republicans not guilty on the perjury charge.
The failed Clinton impeachment can be viewed in more than one way. One lesson is that impeachment of a President who is popular with his own party is doomed to failure. This is the realpolitik lesson. However, there is a more subtle lesson a well. The Clinton impeachment, while based on very real misconduct, largely concerned the President's behavior in his private capacity. The charges of perjury leveled against him arose from a civil suit unrelated to his duties as President of the United States. The obstruction of justice charge was more difficult, because it involved allegations that the President attempted to use his public powers to cover up his private misdeeds. It may be that when history is ultimately written, it will report that the Clinton impeachment failed because he was guilty only of "low Crimes and Misdemeanors."
President Obama and Impeachment
It seems no small understatement to say that President Obama is unpopular with the Republican Party. Partisans on the right can score political points (and raise money) by attacking the President with intense fervor. However, I will go out on a limb and state that there is absolutely no chance that the President will be removed through impeachment. President Obama is as popular with Democrats as he is despised by Republicans. Given that there are currently 53 Senators who caucus with the Democrats (including three independents), there is simply no way to find 67 votes for conviction. Even if all 47 Republicans voted to convict, it would take another 20 votes from Democrats and Independents to succeed. That is not going to happen.
Furthermore, the complaints about President Obama fall into two categories: political and preposterous. Impeachment was never intended as a means of resolving political disputes; that is what elections are for. The Republican Party lost the last two national elections. If they seek a do-over of the last election under the name of impeachment, they may well lose the remainder of their support among middle of the road voters. As for the charges that President Obama is a closet Kenyan Socialist Muslim who wants to overthrow our Democracy and institute an Islamo-Fascist regime, I seriously doubt that the President's detractors could come up with enough evidence to convince even one Senator. My suspicion is that Republicans are happy to allow their firebrands to stir up the faithful but they would never seriously pursue an impeachment they could not win.
